China’s One Child Policy

In my previous post, which I wrote as a guest blogger (before I had the privilege of joining the club – AKA the Law Library’s blog team), I spoke about the awesome Law Library of Congress tradition known as Power Lunch. I recently attended a Power Lunch talk on China’s family planning policy (commonly known as the “one child policy”) given by Laney Zhang, a Senior Foreign Law Specialist who covers China and is our knowledge bank of all things Chinese. The talk was so compelling that I decided to make my debut as an “official” member of the In Custodia Legis team by writing about what I learned.

Laney began by describing the genesis of the policy. She noted that although commonly known as the “one child policy,” because most women in urban areas are limited to bearing one child, the policy permits many women in rural areas to bear a second child if their first child is female. There are also numerous exceptions under which couples may bear two children or more. Generally, the policy lays out principles as to when and under what circumstances couples may procreate.

The policy was introduced in 1978 and officially enforced beginning in 1980. The raison d’être of the policy was billed to the increasing realization that China’s population growth (which doubled from approximately 500 million to 1 billion in only 30 years from 1950-1980) was unsustainable. This growth resulted from, among others things, improvements in health care and the absence of any major war.

Laney then explained the legal framework designed to promote the policy. The framework includes three parts: the Constitution which says that “[t]he state promotes family planning so that population growth may fit the plans for economic and social development”; Population and Family Planning Law, promulgated in 2001, which is the major national law on family planning; and the Measures on the Administration of Social Upbringing Fee (2002) which governs penalties for violations of the policy, also effective nationwide. Laney noted that although the national law and regulation lay out the general principles of the policy, details are left to provincial population and family planning regulations, a fact that makes discerning the details of the policy and its enforcement mechanisms hard to track. Key aspects of the policy, such as exceptions to the general “one child per couple” rule and the determination of the penalties imposed for violations of the policy, are by and large in the purview of the local authorities.

Laney spoke in detail about exceptions to the restrictions imposed by the policy. Although exceptions differ from one province to another, some of the following commonly applied exceptions allow couples to have more than one child:

If their first born is disabled;

If both spouses are members of ethnic minority groups;

If both spouses are only children (so it seems that all individuals born after 1980 whose parents were forced to have only one child would be eligible to have more than one child if they marry another only child);

If a couple divorces and a person thereafter marries an individual who has no child of his or her own; or

If the couple are Chinese who have returned from an overseas country where they have legal residency.

The policy does not apply to residents of Hong Kong and Macau or foreign residents.

In addition, she talked about the human rights concerns raised regarding the policy and its implementation. China observers have criticized the limitation on how many children a couple may have and when they may do so, and the discrimination against “out-of-plan” children, as being inconsistent with international human rights standards. The enforcement mechanisms put in place at local levels – involving heavy fines (the “social maintenance fee”), mandatory birth permits, and (in some cases) forced abortion, sterilization, and confiscation of family property – have also drawn heavy criticism.

But it is not all bleak. Laney mentioned the changing trend in which social maintenance fees are replacing harsh punishments for violating terms of the policy. There are also prospects for reform, including expanding the “one child policy” to a “two children policy.” Laney cited recent discussions among experts in which the need for reform is being framed in economic terms with the adverse effect of the policy on China’s long term labor market (an issue policy makers care deeply about) at the center of the discussion.

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